About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1 1 (2004)

handle is hein.amenin/aeiaads0001 and id is 1 raw text is: Arbitrary& Capricious The precautionary principle is one of the most significant and controver- sial innovations in international environmental, health, and safety policy over the past quarter century. Although it now appears in more than twenty international treaties and is used in more than twenty countries, the precautionary principle has been criticized as excessive, counterpro- ductive, ill defined, and arbitrary. This study examines how the European Union (EU), the principle's leading proponent, has used the precautionary principle in legal decisions. Although the precautionary principle has been cited in hundreds of EU regulatory decisions and documents, those deci- sions provide little definition and analysis of its meaning and requirements. The primary forum for exploring the specific meaning and application of the precautionary principle is therefore the EU courts, where EU regulatory decisions can be challenged or otherwise addressed. In some sixty judicial decisions to date, the EU courts have failed to provide a transparent and consistent meaning and application of the pre- cautionary principle. In some cases, the principle is applied as a draconian sledgehammer that results in overturning long-standing due process prin- ciples and the banning of products with little or no evidence of risk. In other cases, the precautionary principle appears to have no effect on the pre- existing regulatory criteria and regulatory outcomes. In several cases, the principle is applied by the courts to produce a result in direct conflict with the recommendations of the EU's own official scientific advisory bodies. This empirical analysis demonstrates that the amorphous precautionary principle has been applied in an arbitrary and unreasonable manner. Gary E. Marchant is a professor of law at the Arizona State University College of Law in Tempe, Arizona. He also serves as director of ASU's Center for the Study of Law, Science, and Technology. Kenneth L. Mossman is a professor of health physics in the School of Life Sciences at Arizona State University in Tempe, where he has also served as assistant vice president for research. ISBN 084474189-2 1I!!!I 1!!U 52000i Arbitra riclous THE PRECAUTIONARY PRINCIPLE in the EUROPEAN UNION COURTS GARY E. MARCHANT KENNETH L. MOSSMAN

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most